MADHAV VISHWANATH DAWALBHAKTA (DECD) Vs. BENDALE BROTHERS

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. By consent of both the parties, the Writ Petition is heard finally at the stage of admission.

(2.) This Writ Petition is directed against the order dated 13th November, 2017 passed by the District Judge-7, Pune for setting aside the ex-parte order for want of proper service on the defendant in the suit. For the sake of convenience, in order to avoid confusion, the parties are referred to by their original status.

(3.) The petitioners are the original plaintiffs, who have filed the suit for specific performance against the respondent/defendant on the basis of the Agreement dated 4th April, 1996. In Special Civil Suit No. 1491 of 2009, the Court issued summons on the defendant. However, the defendant did not appear though summons were duly served. The trial Court decreed the suit exparte on 8th November, 2011 after considering the affidavit-in-chief of the plaintiff and the documents on record. Nearly two years after, the respondent filed an Application for setting aside the said ex-parte order along with the Application for condonation of delay. The delay was condoned by the trial Court and the Application was numbered as M.A. 684 of 2013 which was contested by the plaintiffs and the trial Court accepted the case of the plaintiff that the summons though was served on the defendant, he failed to appear and as it was good service, the Application was rejected by order dated 16th February, 2015. Appeal No. 340 of 2015 was preferred by the respondent/defendant and after hearing both the sides, the Appellate Court allowed the said Appeal with cost and quashed and set aside the order of Small Causes Court, Pune and directed the respondent to file the written statement. The plaintiffs have challenged the said order in Appeal.